About the Author

David Farrar

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.

New government fails to defend internet freedom

Most businesses in New Zealand will be unaware of this, but by the end of the month they will be at risk of having their Internet access terminated, if they are accused of repeat copyright infringement. They do not have to be found guilty. They do not need to have been infringing themselves.

A new unbalanced law has the American film and music industries able to pressure ISPs to terminate users (any individual or business) solely on their say so. And if an ISP resists, then they may get sued for not complying with the new law – as has happened in Australia.

So how did this all happen? In 2006 the Labour Government introduced a bill to try and update the Copyright Act to the digital age. Many of the changes had wide-spread support. One change did not, being the proposed addition of a s92A which reads:

92A Internet service provider must have policy for terminating accounts of repeat infringers

“(1)An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

“(2)In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

The bill did not define “reasonably implement”, “appropriate circumstances” or who decides if someone “repeatedly infringes”. It also turned ISPs into an unpaid enforcement arm for copyright holders.

The multi-party Commerce Select Committee that heard evidence on the bill, decided unanimously to delete this section from the proposed law. But lobbying continued behind the scenes and the Labour Government decided to over-ride the Select Committee, and reinsert s92A into the bill at the Committee of the Whole consideration. The National Party also voted to reinsert s92A into the bill, despite having voted to remove it at select committee stage.

A leading Intellectual Property barrister, Peter Dengate-Thrush (who also is the Chairman of the global Internet Corporation for Assigned Names and Numbers) described (NZ Herald 28 July 2008) the new law as causing ISPs to police the behaviour of their customers, and that this is akin to Transit NZ being blamed for a road crash.

Occasionally Transit are responsible for that if they’ve designed the road badly, but in this case, I take the view that ISPs have a role that’s supposed to be no greater that that of other citizens in relation to infringements. I particularly disagree with the thrust of the current amendment, which turns the ISPs into enforcement agents for copyright owners. I’m a copyright lawyer and I’ve acted for copyright owners and I’ve written on the value of copyright to the community. It’s not an attack on copyright but we do need to get the balance right between copyright interests and the rights of ordinary citizens and what’s good for the internet industries.

The NZ Computer Society (PR 19 September 2008) made another comparison:

Copyright owners absolutely have the right to protect their intellectual property, and NZCS and others are not for one second saying otherwise. To state it clearly: Copyright violation is a major problem, and we support moves to reduce it.

However to trample all over the rights of computer and internet users, and to place ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations is completely unreasonable.

This is actually eerily similar to a situation where a power company would be forced to have a policy stating that they must cut the power off to a house, business, school or library (yes, they’re included) if someone on the property used that electricity to do something illegal. I can’t imagine that situation receiving a good reception, so why is this any different?

Despite the criticism, both the former Labour Government and the new National Government has refused to stop s92A from coming into force. The enactment date was delayed, but will now come into force on 28 February 2009.

Over the last few months ISPs have been working on a code of practice, to guide the industry on how to interpret and implement such a badly defined law. Their code will provide some certainty to businesses and users who could be affected – however the two major rights holders industry groups (representing the US movie and music industries) do not agree with key provisions in the code, and any disputes could end up in court, as is happening in Australia .

They key point of difference, is on who decides if someone has infringed copyright. Is it the ISP? The user? The rights holder? A judge?

The draft code put together by the Telecommunications Carriers Forum provides for termination of a user’s Internet access if a user is accused of infringing copyright, they do not dispute the allegation, and at least four undisputed allegations are recorded over an 18 month period (and in at least three different months).

If a user disputes the allegation, then the draft code says it is not up to the ISP to determine guilt, and the rights holder should take the user to court if they wish to pursue them.

Actually proving guilt in court though is deemed by some of the rights holder groups as far too cumbersome. They have proposed a novel alternative solution. That if a user denies the allegation, then the rights holder should consider their denial and in their sole discretion decide if it is valid, and notify the ISP accordingly.

This would provide a unique system of justice for users and businesses on the Internet. The rights holder would be the prosecution, the judge and the jury, and the ISP would be the executioner.

There will be a period of great uncertainty when the law comes into force at the end of the month. If you provide Internet access to others (such as your staff) you can be deemed an ISP yourself and you will be in breach of the law if you do not have a policy (as required by s92A) on terminating Internet access to repeat infringers. This means you may have to remove Internet access from some of your staff!

If you have an unsecured wireless router in your home, and a neighbour (or visiting friend) downloads some songs, then you may find yourself facing the loss of Internet access unless you can prove yourself innocent. There is no requirement for guilt to be proved – the onus will be on you to prove innocence.

If there was a Guinness Book of Records category for badly drafted, confused, costly laws that infringe the principle of innocent until proven guilty, then s92A of the Copyright Act would be leading contender.